Plaintiff, James Kirwan, the administrator of the estate of decedent, Kimberly Kirwan, sued
defendants, Lincolnshire-Riverwoods Fire Protection District (Fire Protection District) and Jason
Phillips, James Spicka, Raymond Amidei, James Carney, and David Gnadt, who were paramedics,
firemen, and/or emergency medical technicians employed by the Fire Protection District, in a
wrongful death action stemming from the death of Kimberly Kirwan. The trial court dismissed
plaintiff's amended complaint, finding that it failed to properly allege that defendants committed
willful and wanton misconduct, as required by section 3.150 of the Emergency Medical Services
(EMS) Systems Act (EMS Act) (210 ILCS 50/3.150 (West 2002)). Plaintiff appeals. We reverse.

The following is a summary of the allegations contained in plaintiff's amended complaint. On
March 7, 2001, decedent experienced an allergic reaction to walnuts while at Bar Louie, an
establishment in Riverwoods. At 9:26 p.m. a 9-1-1 call was placed. The caller explained that
decedent was having an allergic reaction and, as a result, was having a hard time breathing and staying
awake. The caller further stated that decedent's throat was closing, and she was turning red and
wheezing. The 9-1-1 dispatcher contacted the Fire Protection District and stated that an ambulance
was needed for an allergic reaction. While the ambulance was en route, the 9-1-1 dispatcher
contacted the paramedic defendants and advised them that decedent's throat was closing and that she
was having a hard time breathing. According to the complaint, prior to arriving at the scene,
defendants(1) knew that decedent was "in a life threatening situation due to an allergic reaction to
walnuts." At approximately 9:31 p.m. the ambulance arrived at decedent's location.

Plaintiff alleges that defendants knew, immediately upon their arrival at the scene, that
decedent was having difficulty breathing and had hives on her face and neck. Defendants further
knew that decedent was in an "extreme, life-threatening situation" which if not immediately treated
properly would lead to her death. The complaint states that "the Defendants knew at the time of their
arrival, and for a period of time of at least six (6) minutes thereafter, that Plaintiff's Decedent's vital
signs were stable and exhibited respiratory distress without anaphylactic shock." While this allegation
is strangely worded, its import does not seem to be that defendants actually knew "at the time of their
arrival" that decedent's vital signs were stable. Rather, the more reasonable reading of plaintiff's
allegation is that based on readings that defendants completed as of six minutes after their arrival on
the scene, defendants concluded that decedent's vital signs were stable both then and "at the time of
their arrival." The next allegation further supports reading the complaint as alleging that defendants
completed their check of decedent's vital signs six minutes after their arrival at the scene: "That the
Defendant knew that as of six (6) minutes after arriving at the scene that Plaintiff [sic] Decedent's
vital signs were as follows: Blood Pressure -- 120/100; Pulse -- 118; Respiratory rate -- 32; Pupils -
pearl; and Skin -- Hot/dry."

The complaint further alleges that defendants knew that decedent's condition was getting
progressively worse and that there was an extremely limited time to provide the proper emergency
medical treatment in order to prevent anaphylactic shock. Plaintiff alleges that decedent's life could
have been saved upon defendants' arrival because her airway was not completely closed and she was
conscious, alert, and had stable vital signs. Further, decedent's situation required emergency medical
procedures including assuring that a patent airway existed and administering subcutaneous
epinephrine, intra-muscular Benadryl, and albuterol. Based on defendants' training and applicable
standard operating procedures, epinephrine and "albuterol via nebulizer" should both have been
administered within the first 60 seconds after defendants' arrival. Further, Benadryl should have been
administered after the epinephrine. A separate allegation states that epinephrine immediately should
have been administered subcutaneously. Defendants failed to administer epinephrine subcutaneously,
albuterol via nebulizer, or Benadryl intra-muscularly. Decedent's airway did not close for at least five
minutes after the arrival of defendants. Defendants administered epinephrine and Benadryl
intravenously only after decedent had gone into anaphylactic shock. Defendants administered the
epinephrine at least seven minutes after their arrival on the scene. Defendants administered the
Benadryl at least eight minutes after their arrival on the scene. Defendants did not administer
albuterol via nebulizer. Plaintiff alleges that the delay in administering epinephrine and Benadryl and
the failure to administer albuterol was "a violation of all applicable emergency medical standards of
care and/or standard operating procedures and training" and was "indicative of an utter disregard of
those standards and an utter indifference for the life of [decedent]." Plaintiff further alleges that there
was no medically justifiable reason for not administering this treatment. Defendants knew that
immediate administration of epinephrine, albuterol, and Benadryl was required to prevent decedent
from dying. The delay in administering epinephrine and Benadryl and the failure to administer
albuterol caused decedent to go into anaphylactic shock and cardiac arrest and was "tantamount to
a refusal to render emergency treatment." Defendants' behavior "evidences a complete indifference
and utter disregard for the health and life of decedent." Finally, plaintiff alleges that the failure to
receive proper medical services resulted in decedent's death. Decedent died on March 13, 2001.

On November 20, 2002, the trial court granted defendants' motion to dismiss plaintiff's
amended complaint without prejudice. The court found that plaintiff had not sufficiently pleaded
willful and wanton conduct because key allegations in his complaint were mere conclusions of law
and fact that were not supported by well-pleaded facts. The court emphasized that, despite the fact
that plaintiff was tendered the relevant standard operating procedures, plaintiff's allegation that
defendants violated standard operating procedures does not specify which standard operating
procedures were violated. Rather than file a second amended complaint, plaintiff moved the court
to make its dismissal with prejudice so that he could appeal it. The court granted that motion, and
plaintiff timely filed a notice of appeal. We review de novo the trial court's dismissal of plaintiff's
complaint. Board of Directors of Bloomfield Club Recreation Ass'n v. The Hoffman Group, Inc.,
186 Ill. 2d 419, 424 (1999).

On appeal plaintiff argues that his complaint sufficiently pleaded willful and wanton conduct.
Section 3.150 of the EMS Act provides that persons or entities covered by the EMS Act who provide
medical services in good faith will be immune from civil liability unless they are guilty of willful and
wanton misconduct:

"Any person, agency or governmental body certified, licensed or authorized pursuant
to this Act or rules thereunder, who in good faith provides emergency or non-emergency
medical services during a Department approved training course, in the normal course of
conducting their duties, or in an emergency, shall not be civilly liable as a result of their acts
or omissions in providing such services unless such acts or omissions, including the bypassing
of nearby hospitals or medical facilities in accordance with protocols developed pursuant to
this Act, constitute willful and wanton misconduct." 210 ILCS 50/3.150 (West 2002).

The parties agree that the limited immunity provided for in section 3.150 applies to defendants but
disagree as to whether plaintiff has properly pleaded willful and wanton misconduct. We must
determine whether the amended complaint alleges sufficient facts to bring plaintiff's claim within the
scope of a legally recognized cause of action. Adkins v. Sarah Bush Lincoln Health Center, 129 Ill.
2d 497, 518 (1989). A complaint should not be dismissed unless, when viewing the allegations in the
light most favorable to the plaintiff, it clearly appears that the plaintiff would not be entitled to relief
under any set of facts. Board of Directors of Bloomfield Club Recreation Ass'n v. The Hoffman
Group, Inc., 186 Ill. 2d 419, 424 (1999).

In Illinois there are two varieties of willful and wanton conduct, intentional and reckless.
Poole v. City of Rolling Meadows, 167 Ill. 2d 41, 48 (1995). These two types of willful and wanton
conduct are distinguished by the actor's mental state. Intentional willful and wanton conduct is
committed with "actual" or "deliberate" intent to harm. Illinois Pattern Jury Instructions, Civil, No.
14.01 (1995). By contrast, reckless willful and wanton conduct falls in between actual intent and
mere negligence. Poole, 167 Ill. 2d at 47. Although reckless willful and wanton conduct is not
committed intentionally, it is nonetheless, at least in theory, determined based on the actor's "real or
supposed state of mind." W. Keeton, Prosser & Keeton on Torts §34, at 212 (5th ed. 1984).
Specifically, both the legislature and the supreme court have defined reckless willful and wanton
conduct as conduct committed with "utter indifference" to or "conscious disregard" for the safety of
others. 745 ILCS 10/1--210 (West 2002); Pfister v. Shusta, 167 Ill. 2d 417, 421 (1995). The
supreme court has also described the required mental state as a "reckless disregard" for the safety of
others. American National Bank & Trust Co. v. City of Chicago, 192 Ill. 2d 274, 285 (2000).
Further, "[i]ll will is not a necessary element of a wanton act [i.e., reckless willful and wanton
conduct]. To constitute an act wanton, the party doing the act or failing to act must be conscious of
his conduct, and, though having no intent to injure, must be conscious, from his knowledge of the
surrounding circumstances and existing conditions, that his conduct will naturally and probably result
in injury." Bartolucci v. Falleti, 382 Ill. 168, 174 (1943). It is reckless willful and wanton conduct
that is at issue in this case.

To plead a sufficient cause of action in either willful and wanton conduct or negligence, the
plaintiff must allege the existence of a duty owed by the defendant to the plaintiff, a breach of that
duty, and an injury proximately caused by the breach. Benhart v. Rockford Park District, 218 Ill.
App. 3d 554, 557 (1991). However, unlike negligence, in order to sufficiently plead willful and
wanton conduct, a plaintiff must also allege "either a deliberate intention to harm or an utter
indifference to or conscious disregard for the welfare of the plaintiff." Adkins, 129 Ill. 2d at 518.

An actor's "utter indifference" or "conscious disregard" for the safety of others may be
inferred from the outrageous nature of the conduct committed. See, e.g., Doe v. Calumet City, 161
Ill. 2d 374, 391 (1994). The supreme court has provided two examples of conduct from which
"reckless disregard" for the safety of others can be inferred. The first is " ' "a failure, after knowledge
of impending danger, to exercise ordinary care to prevent it." ' [Citations.]" American National Bank,
192 Ill. 2d at 285. The second is " ' "a failure to discover [a] danger through recklessness or
carelessness when it could have been discovered by the exercise of ordinary care." ' [Citations.]"
American National Bank, 192 Ill. 2d at 285.

Whether willful and wanton conduct has been committed in any given case requires close
scrutiny of the facts as disclosed by the evidence. O'Brien v. Township High School District 214, 83
Ill. 2d 462, 469 (1980), quoting Lynch v. Board of Education, 82 Ill. 2d 415, 430 (1980). The
supreme court has described willful and wanton conduct as a "hybrid" between negligent and
intentional acts. Ziarko v. Soo Line R.R. Co., 161 Ill. 2d 267, 275 (1994). Thus, "[u]nder the facts
of one case, willful and wanton misconduct may be only degrees more than ordinary negligence, while
under the facts of another case, willful and wanton acts may be only degrees less than intentional
wrongdoing." Ziarko, 161 Ill. 2d at 275-76.

Whether a defendant's breach of a legal duty amounts to willful and wanton conduct is
ordinarily a question of fact. Calloway v. Kinkelaar, 168 Ill. 2d 312, 326 (1995). That said, because
fact pleading is required in Illinois, a plaintiff must allege "facts which, if proven, would show that
the defendants acted or failed to act with an utter indifference or conscious disregard" for the
plaintiff's safety. Adkins, 129 Ill. 2d at 519. For purposes of a motion to dismiss, well-pleaded facts
are taken as true and all reasonable inferences from such facts are drawn in favor of the plaintiff.
Calloway, 168 Ill. 2d at 325. However, we may consider only well-pleaded facts and not conclusions
of law or fact. Brock v. Anderson Road Ass'n, 287 Ill. App. 3d 16, 26 (1997). After reviewing the
amended complaint, we conclude that plaintiff sufficiently pleaded reckless willful and wanton
misconduct.

Defendants fault plaintiff for not pleading any facts describing their conduct during the first
seven minutes they arrived on the scene. Defendants do not cite any legal basis for their conclusion
that a plaintiff must describe in detail all of the defendants' conduct within the relevant time frame.
It is not the rule in Illinois that a plaintiff must plead every conceivably relevant fact. Rather, a
plaintiff must allege sufficient facts to bring his claim within the scope of a legally recognized cause
of action. Adkins, 129 Ill. 2d at 518. In this case, plaintiff's allegations were sufficient to state a
claim for willful and wanton conduct. Plaintiff alleged that, despite defendants' knowledge prior to
their arrival on the scene that decedent was having difficulty breathing and her throat was closing due
to an allergic reaction, and despite their training and standard operating procedures and accepted
emergency practices, they waited between seven and eight minutes to administer two of the necessary
medications and never administered the third. In cases of life-threatening emergencies, seven or eight
minutes can be a significant delay that could amount to "utter indifference" or "conscious disregard"
for decedent's safety.

As we have noted, while there is a distinction between negligent conduct and that which is
willful and wanton, the distinction is not necessarily a great one. There may be a reasonable
explanation for defendants' conduct in this case, but it is not proper to dismiss a case on the basis of
what probably happened (see Yuretich v. Sole, 259 Ill. App. 3d 311, 314 (1994)). The court in
Yuretich stated that, "where merit is dependent upon the facts, a motion for summary judgment and
not a motion to dismiss is the procedure which must be employed." Yuretich, 259 Ill. App. 3d at 314.
This is a case where merit is dependent upon the facts, not one where merit can be determined as a
matter of law at the pleading stage. Taking plaintiff's well-pleaded facts as true, we cannot say that
it clearly appears that plaintiff would not be entitled to relief under any set of facts. Plaintiff's
allegations, if proven, could be sufficient to show that defendants were aware of impending danger
to decedent and failed to exercise ordinary care to prevent it, thereby acting with reckless disregard
for her safety (see American National Bank, 192 Ill. 2d at 285).

We are similarly unpersuaded by defendants' emphasis on the absence of allegations referring
to the particular standard operating procedures that defendants allegedly violated. The amended
complaint alleges that defendants' failure to properly administer medications violated their training,
accepted emergency medical care, and standard operating procedures. Defendants have cited no
authority for the proposition that plaintiff was required to identify or attach as exhibits the specific
standard operating procedures that were violated, and we decline to require plaintiff to do so. We
wish to emphasize that we are not creating a loophole by which a plaintiff may avoid dismissal of an
insufficiently pleaded complaint. Here, plaintiff specified the ways in which defendants violated the
standard operating procedures but did not identify the procedures themselves. We believe this is
sufficient. If defendants believe that there is no issue of material fact as to whether they complied
with the standard operating procedures, they should move for summary judgment. Furthermore,
violation of the standard operating procedures was not the sole basis of the amended complaint.
Plaintiff also alleged that defendants violated their training and accepted emergency care. Thus, even
if plaintiff were required to point to the specific procedures that defendants violated, his failure to do
so would not be a proper basis for dismissing the entire complaint.

For the foregoing reasons, we conclude that plaintiff sufficiently pleaded willful and wanton
misconduct by defendants. We reverse the trial court's dismissal of plaintiff's amended complaint and
remand for further proceedings.

Reversed and remanded.

GILLERAN JOHNSON, J., concurs.

PRESIDING JUSTICE O'MALLEY, dissenting:

The well-pleaded facts in plaintiff's complaint and the reasonable inferences therefrom fail to
demonstrate that defendants' conduct was willful and wanton. Plaintiff has not identified the conduct
that he alleges to be willful and wanton. Other than the fact that defendants did not administer
albuterol, epinephrine, or Benadryl during the first seven minutes after their arrival on the scene,
plaintiff has not pleaded any facts describing defendants' conduct during this period. Despite this,
plaintiff concludes that precisely this conduct demonstrates that defendants acted with utter
indifference and conscious disregard for the safety of decedent. This is not an instance where plaintiff
has alleged that defendants did nothing or even failed to administer care. Plaintiff has simply avoided
any description of defendants' conduct. In my view, it would be the exceptional circumstance where
a plaintiff could plead facts that demonstrate that the defendant's conduct was willful and wanton by
alleging only that the defendant failed to take a very precise course of action and not otherwise
describing the nature of the defendant's conduct.

The remainder of plaintiff's complaint fails to compensate for this deficiency. The problem
is that plaintiff's allegations that would otherwise, if proven, demonstrate willful and wanton conduct
are not well-pleaded facts but conclusions. For example, plaintiff has alleged that defendants knew
that immediate administration of epinephrine, albuterol, and Benadryl was required to prevent
decedent from dying and that defendants failed to timely administer these drugs. I do not question
that if this startling allegation is taken as true it amounts to willful and wanton conduct; however, this
allegation is a conclusion because plaintiff has not alleged facts from which such knowledge could
be reasonably inferred. Plaintiff also alleges that "the failure to administer epinephrine for seven (7) minutes and [B]enadryl for eight (8) minutes, and the failure to ever administer albuterol, is more than
simply a violation of all applicable emergency medical standards of care but is indicative of an utter
disregard of those standards and an utter indifference for the life of [decedent]." Relatedly, plaintiff
alleges that this conduct violated standard operating procedures for paramedics. Given their context,
these allegations are also conclusions. In determining the legal sufficiency of a complaint, a court
looks at the complaint as a whole. Lloyd v. County of Du Page, 303 Ill. App. 3d 544, 552 (1999).
Thus, in one context, an allegation may be a proper allegation of fact, while in another context, the
same allegation may not give an opponent sufficient information about the character of the evidence
to be introduced or the issues to be tried, and it may be deemed a conclusion. J. Eck & Sons, Inc.
v. Rueben H. Donnelly Co, 213 Ill. App. 3d 510, 514 (1991). While I can envision a case where it
would be sufficient to merely allege that conduct so flagrantly violates the standard of care as to be
willful and wanton, this is not the case, because plaintiff has not sufficiently described the nature of
the conduct in question. As previously mentioned, plaintiff has not identified the nature of defendants'
conduct other than to allege that a very precise course of action was not taken. Additionally, plaintiff
has not even identified any particular standard operating procedures that defendants violated.
Therefore, plaintiff's allegation that defendants so flagrantly violated standards of care as to be guilty
of willful and wanton conduct is a conclusion.

Moreover, plaintiff's inability to point to a particular standard of care or standard operating
procedure is not attributable to a problem of access. It is true that where facts of necessity are within
the defendants' knowledge and not within the plaintiff's knowledge, a complaint that is as complete
as the nature of the case allows is sufficient. Yuretich v. Sole, 259 Ill. App. 3d 311, 313 (1994).

However, the transcripts of the proceedings below reveal that defendants tendered to plaintiff the
applicable standard operating procedures for paramedics. Despite this, plaintiff did not identify the
relevant standard operating procedures in his complaint. Furthermore, even if plaintiff had alleged
that defendants violated a particular standard operating procedure, plaintiff would still have the
problem that he did not allege what the paramedics did for the first seven minutes that they were on
the scene. I note that statements made by plaintiff to the trial court strongly suggest that the reason
plaintiff failed to allege the particular standard operating procedures that defendants violated was that
the standard operating procedures do not designate any time limits for administering the care that they
mandate. Thus, they do not support (and, in fact, disprove) plaintiff's allegation that defendants
violated standard operating procedures by administering various treatments late. It is obvious to me
that plaintiff, aware that the EMS Act insulates emergency medical personnel from liability for
negligence, has simply affixed the parlance of "willful and wanton" to alleged conduct that is no more
than negligent.

There is particularly good reason for conscientious adherence to the fact-pleading requirement
in the context of the EMS Act because of the policy rationale behind it. In the EMS Act, the
legislature sought to promote effective and efficient emergency response by trained medical personnel
by limiting the risk of malpractice liability. Gleason v. Village of Peoria Heights, 207 Ill. App. 3d
185, 188-89 (1990). As Gleason recognized, fear of liability can have a perverse effect on a
paramedic's decision making. Society, being constituted of potential patients, has an interest in
paramedics making their treatment decisions based on what is best for their patient. Where fear of
liability skews a paramedic's treatment decision, the patient suffers because he does not receive the
treatment that the paramedic believes most effective. Gleason explained that "[e]mergency personnel must not be afraid to do whatever they can under less than ideal circumstances." Gleason, 207 Ill.
App. 3d at 189. Where courts are not diligent in enforcing the fact-pleading requirement, the purpose
of the EMS Act is thwarted because complaints alleging quintessentially negligent conduct may
survive motions to dismiss, thereby making it likely that paramedics will be haled into court based on
the good-faith effectuation of their job duties.

The bottom line is that if these defendants were physicians rather than paramedics, and thus
liable for negligence, these allegations of willful and wanton conduct would be seen as ridiculous.
If this complaint is sufficient, then every complaint alleging medical malpractice should also contain
a count of willful and wanton conduct. I respectfully dissent because the legislature intended to
provide immunity to these defendants, not simply to require plaintiff to label negligent conduct as
willful and wanton conduct.

1.
Plaintiff uses the term "defendants" in his complaint but, in context, often appears to be referring only to the paramedic defendants
as opposed to the Fire Protection District, which is also a defendant. We note this ambiguity but, nonetheless, use plaintiff's terminology.